The California state bar has charged San Francisco attorney Philip Kay, famed for sexual harassment lawsuits, “with turning two cases before three San Diego judges into three-ring circuses by repeatedly impugning court orders and caustically accusing the judges of misconduct in front of jurors. Prosecutors also claim Kay entered into an illegal fee-splitting agreement in his most high-profile case — a sexual harassment suit against mega-law firm Baker & McKenzie that in 1994 resulted in a $6.9 million San Francisco jury award for his client, former legal secretary Rena Weeks. (The judgment was later reduced to $3.5 million.)” The title quote is from San Diego judge Joan Weber, and refers to Kay’s conduct in a sexual harassment suit against Ralphs Grocery. (Mike McKee, “Famed Plaintiffs Lawyer Faces Bar Charges Over Conduct”, The Recorder, Dec. 5).
Archive for 2008
NYT travel columnist comments on air crash, gets sued in Brazil
Joe Sharkey, a well-known travel columnist for the New York Times, was aboard an Embraer business jet in Brazil that collided with another plane but managed to land safely although all 157 aboard the other plane died. Sharkey later discussed the episode on one of his blogs, and was quite critical of Brazilian air traffic control and some others involved in the affair. Now, according to an Oct. 16 press release, the widow of one of those who died on the other plane is suing Sharkey for having “launched personal attacks against Brazil’s President, air traffic controllers and other notorious individuals and, repeatedly and piercingly, started offending Brazilians indiscriminately”. “Only amends will restore the widow’s dignity,” states Rosane Gutjhar’s lawyer, Oscar Fleischfresser, who may have one of the best lawyer surnames ever (Fleischfresser = carnivore)(Aero-News.net, Oct. 21; JREF Forum; O Estado de Sao Paolo/ATC Brasil). In a presumably unrelated sidelight, a federal court this summer turned down an attempt by Brazilian survivors to file injury claims for the crash in the U.S., ruling that they should instead be heard in Brazil, where the awards are likely to be much lower.
ApartmentRatings.com commenters sued
ApartmentRatings.com is a site that invites users to post their opinions about good and bad experiences as renters with particular buildings, complexes and landlords. The owners of two Bay area apartment complexes, Parkmerced in San Francisco and Larkspur Shores in Larkspur, have now sued eighteen unnamed defendants over negative comments such as “Construction noise, poor management, tacky decor, and an indifferent staff”, “I do not think the new management is sincerely trying to improve anything”, “stay far away and never look back,”, “worst place I’ve ever lived”, and “a real dump”. The real estate firms, Parkmerced Investors Properties LLC and Stellar Larkspur Partners LLC, claim libel, tortious interference with contract, and perhaps most creatively violations of the federal Lanham Act (their basis for getting into federal court). The Lanham Act is more usually encountered in complaints of false advertising, but the plaintiffs say it applies here “because Defendants misrepresent the nature, characteristics and qualities of the Apartments”. (Sam Bayard, Citizen Media Law, Nov. 24). According to CalBizLit (Nov. 20):
The two plaintiffs allege that “on information and belief” the posting reviewers included persons who were not tenants, but were employees, agents, etc. of competing apartment house communities. “On information and belief.” That’s often lawyer language for “I got no idea whether it’s true or not, but let’s do some discovery and see what happens.”
December 5 roundup
- You are cordially invited to a fishing expedition for lawsuits over energy drink/alcohol mixes. RSVP: Center for Science in the Public Interest [Balko, Reason “Hit and Run”]
- Recent Overlawyered guestblogger Victoria Pynchon mediates an ADA claim against a Long Beach motel owner. Extortion? Fair compromise? Both? Neither? [Settle It Now, scroll]
- 19-year-old Ciara Sauro of Pittsburgh is disabled, in medical debt, and waiting for transplant, crowning touch is the $8,000 default judgment RIAA got against her for downloading 10 songs [Ambrogi]
- “It does not take a graduate degree to understand that it is unacceptable to hide evidence and lie in a deposition” — Seventh Circuit sanctions Amtrak worker for dodgery in workplace-injury suit [Ohio Employers’ Law; Negrete v. Nat’l Railroad Pass, PDF]
- New Richard Nixon tapes: “I can’t have a high-minded lawyer … I want a son-of-a-b—-.” [Althouse]
- Aramark suit documents unsealed: girl paralyzed by drunk driver got $25 million in suit against New York Giants stadium beer vendor [AP/Vineland, N.J. Daily Journal, earlier]
- New York high court bounces Alice Lawrence/Graubard Miller fee suit back to lower courts, says more info needed [NYLJ, earlier]
- Couple claims retention of $1,075 rental security deposit was racially motivated, seeks $20 million [WV Record; Martinsburg, W.Va.]
When a ploy doesn’t work
“A New Orleans attorney who pleaded guilty to stealing millions of dollars from one of the city’s most prominent law firms has dropped a racketeering lawsuit he filed against the firm after his indictment.” (AP/KATC, Dec. 4; James Perdigao, Adams & Reese).
ABA Journal “Blawg 100” — go vote for us
I’m very pleased to announce that this year, as last, the American Bar Association’s ABA Journal has named Overlawyered as one of its “100 best Web sites by lawyers, for lawyers”, and I’m not going to quibble about that wording, even though I’m not a lawyer nor (I believe) are the majority of the site’s readers.
So much for the introductory pleasantries. Now for the main task at hand, which is to win.
Readers may remember that last year Overlawyered lost its run for first place in its category by only a handful of votes, perhaps because we were relatively shy and diffident about urging people to go vote for us. This year the ABA Journal has placed us among ten blogs in the “niche” category, where we face competition from some very high-quality blogs, but, with all due respect, not from any whose readership levels and outside recognition we think exceed ours.
If you go there to vote, you will notice that the popular patent-law blog Patently-O has evidently been whipping its supporters to go cast their votes immediately, and is, for the moment, far in the lead. The ABA Journal says that last time it checked, “Patently-O’s Facebook group had more than 800 members,” which is very nearly the number of votes that blog has received so far. The other possible reason for Patently-O’s huge overnight vote surge, of course, is that they’ve invented some sort of bot to stuff the ballot box by impersonating real voters. But that couldn’t be the right explanation. These are patent lawyers we’re talking about. No way could they invent something.
Anyway, go there and vote for Overlawyered and your favorites in the other categories.
“5 minute after” suits and the Wal-Mart trampling
Ron Miller at Maryland Personal Injury thinks the filing of suits only days after an event like the Long Island Wal-Mart trampling, at a point when key facts relevant to the nature and extent of liability have yet to be brought out, “don’t help the clients and also don’t help the general public perception of personal injury lawyers or their clients.” There are, of course, numerous tactical reasons for a race to the courthouse in various legal situations, particularly in likely class actions where lawyers who file early may seize control of the management of a collective suit. Where class action handling of cases is unlikely, however, as in the trampling case, I’ve long suspected that the main reason for the race to the courthouse is that it enables the lawyer to get his own name in the papers, thus pulling in other claimants, including some who might otherwise have signed up with less noisy lawyers.
Bill Childs at TortsProf speculates that another reason is to obtain discovery immediately before memories fade or evidence becomes unavailable in some other way. Again, I’m sure there are some cases where this factor is at work, but I also suspect there are many where the lawyer does not follow up on the hasty filing by plunging into discovery as rapidly as is practicable.
P.S. Some new reporting out on the events leading up to the shopper crush that morning, and a blog roundup from Carolyn Elefant. At “Freakonomics”, Ian Ayres: “To say that the low prices were a but-for cause of this man’s death is not to say that Wal-Mart should be legally or morally culpable for low prices.” Further thoughts from White Coat Rants. And from commenter “Dan”, below, a naughty suggestion for how to treat the claims from not-especially-injured crowd members:
…how about this idea. Everyone who self-identifies as being in the trampling crowd so they can share a jackpot for the psychological horror of it also gets put on the list of people included in a share of a manslaughter charge. Seems like a good trade; a coupon for $10 off your next Wal-Mart purchase in exchange for a few years in prison. Any takers?
P.P.S.: Eric Turkewitz advances an alternative motivation for haste, in that it might encourage potential witnesses to get in touch with the lawyer; yet another possibility, he says, is that the plaintiff family might have demanded haste.
Microblog 2008-12-04
- MDs retreating from hospital-based practice for many reasons, including legal [Happy Hospitalist]
- Mark Twain: “It usually takes me more than three weeks to prepare a good impromptu speech.” Know that feeling [h/t @lawfirmblogger]
- Among Murdoch properties, stolid WSJ has begun sharing stories with tabloid NYPost, think of the satiric possibilities [Calderone/Politico]
- Oral history of libertarian magazine Reason over 40 years, lots I didn’t know about its past [Brian Doherty and many others]
- As rescuers neared, “immaculate” champagne service: sang-froid of staff and guests under Taj siege [Daily Mail] Security at Mumbai’s Oberoi hotel couldn’t get gun permits from gov’t [WSJ] Tunku Varadarajan: What India must do now [Forbes]
- Good! Obama camp hedging support for EFCA (card-check, imposed union contract) bill [Las Vegas Sun h/t @Eric_B_Meyer]
- Lap dancing “is not sexually stimulating”, British parliamentary committee is told [Guardian via Feral Child]
No decent interval for Eliot Spitzer
Yes, he’s going to be back, as a columnist for Slate instructing the world on matters of government, regulation and finance. Perhaps one of his early columns will be on the topic “Why it’s a bad idea to lead a public crusade to toughen penalties for a particular legal offense if you yourself are an ardent repeat committer of it.” Prof. Bainbridge has some further thoughts, along with a collection of Jay Leno jokes.
From comments: lawyer referral fees
Reader Phil Grossman, in comments to yesterday’s post about the hawking of injury case leads to lawyers, advances some interesting contentions, including some I’m not knowledgeable enough to evaluate, about lawyer referrals and fee-splitting:
…Lawyers are the only professional group that considers it ethical to pay referral fees. The bar associations allow and approve referral fees as long as they are paid only to other lawyers.
In the sort of mass tort lawsuits that this company is dealing in, it is extremely common for ‘clients’ to be bought and sold, sometimes multiple times, with a typical referral fee being around a third of the contingency fee. The general public doesn’t realize that the lawyer advertising on TV or out on the Internet for mass tort clients is usually just a marketer, selling all the clients he collects to other lawyers. It is actually more lucrative to advertise for clients and then sell them to other lawyers than to do the actual work of representing clients.
If, for example, someone is injured in an auto accident, it is common for a relative or friend who happens to be a lawyer to offer to refer the victim to a “good personal injury lawyer”. But the victims aren’t aware that their relative or friend is probably making money off of their accident by collecting around a third or so of the contingency fee from the lawyer they have been referred to. Although bar association rules usually say the referral fee and its amount should be disclosed to the client, in practice it is always kept secret from the client, who thinks his or her lawyer relative or friend is just being altruistic.
But it appears that this company might be trying to collect money up front from its targeted lawyers, rather than taking the normal percentage payment of their referral fees from the contingency fees after the fact. If so, the targeted lawyers need to be very cautious indeed.
And:
Read On…